Farm Workers Stumble |in Toxic-Exposure Case

     PHILADELPHIA (CN) – A decision barring migrant farm workers from suing Dow Chemical and Dole for toxic exposure inspired an impassioned dissent from the Third Circuit.
     The roughly 200 workers initially brought their claims in 1993, claiming that developed debilitating health problems because of exposure to the chemical dibromochloropropane, or DBCP, between the 1960s to the 1980s.
     “To our knowledge, no court – federal or state – has ever reviewed the actual merits of [the workers’] claims,” Judge Richard Nygaard wrote for the Third Circuit majority Tuesday. “Instead, these matters have continued in various courts around the country on purely procedural questions. Not surprisingly, the procedural history associated with these cases is labyrinthine.”
     When procedural issues tanked the first lawsuits, the workers tried again with a 2011 federal complaint in Louisiana, and they brought the same suit one year later in Delaware.
     The Louisiana court ruled that the state’s statute of limitations barred the lawsuit, however, and the Delaware court ruled in August 2012 that the Louisiana dismissal blocked it from hearing the case.
     In affirming the Delaware court’s decision 2-1 Tuesday, the Third Circuit said that the “first-filed rule” controls its action.
     “They wanted to keep the same litigation going in two different federal fora simultaneously to see in which one they would fare better,” Judge Nygaard wrote. “This duplication of litigation was of their own making and it was not an abuse of discretion for the Delaware District Court to dismiss their second-filed complaint with prejudice, instead of staying the matter.”
     That assessment faced criticism, however, from Judge Julio Fuentes in a 25-page dissent eclipsing the size of the decision.
     “More than two hundred plantation workers brought this suit alleging their employers and certain chemical companies knowingly exposed them to toxic pesticides over a period of many years,” Fuentes wrote. “As a result, they say, they have injured kidneys, are infertile, and are at heightened risk of cancer. Twenty years after first bringing suit, no court has heard the merits of their claims.”
     Fuentes wrote that many of the court’s sister circuits have deemed the first-filed rule inequitable when it prevents claims to go entirely unheard.
     “This is not a litigation strategy designed to get the plaintiffs multiple bites at the apple or a more favorable judge or decisional law than what was offered in Louisiana,” Fuentes wrote. “Rather, this is a litigation strategy designed to get the plaintiffs a seat at the table to present their claims to a single U.S. District Court.”
     In their suit, the workers argued that Dow has known as early as 1958 of the toxic effects of DBCP. The Environmental Protection Agency banned DBCP’s use, with limited exceptions, in 1979.

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